A friend on Facebook posted an article proposing that burning an American flag be made an act of treason in the United States. I pointed out that in Texas v. Johnson the Supreme Court ruled that burning the American flag was a protected form of expression under the first amendment. He then asked if he struck the person that burned the flag (as a way of expressing his opinion of the flag burner) would that be protected under the first amendment? My initial response is that battery (striking the protester) would not be protected, but my Internet searching skills failed to come up with anything conclusive. There's a lot out there about threats of imminent violence not being protected by the first amendment, but nothing about actual violence. Can anyone provide some pointers that would be helpful?

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    Can you re-state the question, 'cuz I can't understand it? Battery plainly is not protected by the First Amendment. Are you asking whether some wingnut has ever argued that battery can be "protected speech", to the point that the case made it to the appeals stage? Or, are you looking for evidence that someone at some time has been convicted of battery, where the victim was expressing a political viewpoint that the assailant disagreed with? – user6726 Nov 12 '16 at 2:22
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    Of course you didn't find anything: it's totally obvious. Your debate opponent was trying to make you argue against an absurdity because they'd already lost the argument about the original point, which is that the Supreme Court already decided the amendment protects flag-burning as political speech. – Nij Nov 12 '16 at 3:02
  • In addition the the 1st amendment problems, treason is very narrowly defined in the constitution and flag burning certainly doesn't qualify. – Matt Jul 26 '17 at 15:27

You have a conflict of rights - freedom of expression vs freedom from harm. Freedom from harm wins - this is a crime and arguing a first amendment right to punch someone in the face is not going to work. Nor would it work if you expressed yourself by shooting them in the head.

More broadly, you can only exercise your rights so long as you don't infringe mine. You burning your flag is free speech: you burning mine is criminal damage.

As a rather trivial point - in the millisecond before the fist contacted the head there was clearly "imminent harm".

  • Does people have right of security in the United States? Which amendment guarantees this right? – Gabriel Diego Nov 14 '16 at 5:38

A battery (such as hitting) has no relation to First Amendment protection. First Amendment protects speech not conduct which injures another person. Burning a flag may invoke strong feelings from viewers, but those feelings must give way to protected speech. For government to regulate speech, it must be “integral to criminal conduct.” United States v. Meredith, 685 F.3d 814, 819, 2012 U.S. App. LEXIS 13012, 7, 2012-2 U.S. Tax Cas. (CCH) P50,421, 110 A.F.T.R.2d (RIA) 5157 (9th Cir. Cal. 2012)

Another instance of where most would rebuke conduct, but that conduct is found to be protected by the First Amendment would be wearing medals not earned in military service. The US Supreme Court backed the ruling of the Ninth Circuit and found protecting ones reputation is not a governmental function unless it violates criminal law. United v. Alvarez, 617 F. 3d 1198. (Stolen Valor Act held unconstitutional) "At issue here is the First Amendment exception that allows the government to regulate speech that is integral to criminal conduct. . . ." Id. at 819-20. United States v. Osinger, 753 F.3d 939, 946, 2014 U.S. App. LEXIS 10377, 17-20, 2014 WL 2498131 (9th Cir. Cal. 2014)

To circle back around to the specifics of your question, the short answer is the First Amendment protects speech. While some conduct such as flag burning, or wearing medals is protected, hitting another person is outside the scope of protection of the constitution.


Freedom of Expression pertrains only to the "expression" part of an action. In other words - the government may not ever enact laws that would anyhow forbid any contents that a person can express. However it does not give an explicit right to for the citizen to break laws that congress can enact to serve his purpose. Let's say you've bought a ticket to a sports event. The organizers cannot legally hold you from attending the event (well, technically they could for some reasons, but let's simplify), however the don't have to allow you to use their car, to attend. The right to attend only pertains to the issue of being at the event, but doesn't give you unlimited, additional rights, to be able to use your right. Just as having a right to carry guns, doesn't give you the right to force gunmakers to make one for you. You may express even "battery expression" (if such thing existed), provided you don't break any other laws, that are not about speech/expression. Since you are, no, you can't punch anybody on the grounds of 1st amendment

  • "may not ever enact laws that would anyhow forbid any contents that a person can express": what then do you say about fraud or perjury? – user6726 Jul 26 '17 at 0:51
  • Under these conditions, a citizen is bound additionally by either private contract (to his business partnerss/clients/etc.) or by his oath. I do agree that the government DOES in fact enact laws that forbid contents a person may express, but these laws are recognized as problematic and special cases (libel, obscenity, data leaks). However the case asked here is not such a case, as the illegality of the act (punching somebody as expression) is not caused by the expression content, but the illegal method of expression. – Nirtam Jul 26 '17 at 2:15

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